Movie producers take First Amendment case to Louisiana high court

Attorneys for the producers and director of the movie Natural Born Killers recently petitioned Louisiana's high court to review a lower court ruling that they say is the first “American court [decision] to hold that the creators of a fictional story can be sued for the deviant criminal acts of alleged imitators or copycats.”

Patsy Byers, a clerk shot by a young man and woman robbing a convenience store, sued Time Warner, Inc., and Oliver Stone in July 1995, alleging they were responsible for her paralyzing injuries (she later died of other causes). Her lawsuit claimed that she was shot because the young couple was enamored with the movie Natural Born Killers and its glamorization of violent behavior.

The young man and woman were allegedly emulating the violent Mickey and Mallory, the movie's protagonists, when they went on their crime spree. According to the attorney for Byers' estate, Time Warner and Stone should be liable for “intentionally, recklessly, or negligently including in the video subliminal images which either directly advocated violent activity or which would cause viewers to repeatedly view the video and thereby become more susceptible to its advocacy of violent activity.”

Time Warner argued that imposing monetary damages on the producers would violate the First Amendment.

A trial judge dismissed the claim against the film producers and director in January 1997, ruling that the “law simply does not recognize [such] a cause of action.” However, in May 1998, a Louisiana appeals court reversed in Byers v. Edmonson, ruling that the trial court should not have dismissed the case and that plaintiffs presented sufficient allegations to avoid dismissal on First Amendment grounds.

Byers' allegations, which the appeals court said it had to accept as true at the early procedural stage of the lawsuit, are that the movie falls into a category of speech—speech that directly incites and will likely lead to imminent lawless action—that is unprotected by the First Amendment.

In 1969, the U.S. Supreme Court ruled in Brandenburg v. Ohio that government cannot “forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

In reaching its decision, the Louisiana appeals court relied on Rice v. Paladin Enterprises, Inc., in which the U.S. Court of Appeals for the 4th Circuit ruled that the First Amendment did not bar a wrongful death action against the publishers of an instructional book entitled Hit Man: A Technical Manual for Independent Contractors.

In their appeal to the Louisiana Supreme Court, attorneys for the Warner defendants, note that “no court in America has ever held a filmmaker or film distributor liable for injuries allegedly resulting from imitation of a film.” They argue that “the specter of such boundless liability would cause those who create movies, music, books, and other creative works to avoid controversial or provocative subjects.”

The Motion Picture Association of America, Inc., joined by more than a dozen other groups, has weighed in with a friend-of-the-court brief, arguing that the appeals court decision will chill free expression and lead to self-censorship in the entertainment industry. Their brief states that “for almost three decades, state and federal courts throughout the country have consistently protected core expressive speech in film against liability for alleged 'copycat' crimes committed by others.”

Both the Warner defendants and their supporters take great pains to distinguish the Hit Man case from the case at hand. Attorneys for the film producers characterize the Hit Man case as “wholly inapplicable” to Byers v. Edmonson.

However, at least two free-speech experts argue that the Louisiana case is a logical, albeit unfortunate and disturbing, extension of the Paladin Press decision. These experts say the Louisiana appeals court decision in Byers shows how harmful the earlier case was to First Amendment free-speech principles.

Paul McMasters, First Amendment ombudsman for The Freedom Forum, said: “The plaintiffs' attorneys in the Hit Man manual case argued that their exception was narrow and would do no collateral damage to other works and free-expression principles. This Natural Born Killers case in Louisiana proves otherwise.”

Robert O'Neil, founder of the Thomas Jefferson Center for the Protection of Free Expression, agrees. “The Natural Born Killers case in Louisiana is very worrisome,” he said, “because we argued that if the Hit Man concept prevailed, there was no logical reason why it could not be extended to works of fiction.

“I hate to say 'I told you so,' but this is exactly the use of the Paladin precedent that we feared from the outset,” O'Neil says.

The Louisiana Supreme Court will decide whether to hear the appeal in the Byers case this fall.

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THE EXPERTS

The First Amendment Center is an educational organization and cannot provide legal advice.

Ken Paulson is president of the First Amendment Center and dean of the College of Mass Communication at Middle Tennessee State University. He is also the former editor-in-chief of USA Today.

Gene Policinski, chief operating officer of the Newseum Institute, also is senior vice president of the First Amendment Center, a center of the institute. He is a veteran journalist whose career has included work in newspapers, radio, television and online.

John Seigenthaler founded the Newseum Institute’s First Amendment Center in 1991 with the mission of creating national discussion, dialogue and debate about First Amendment rights and values.

About The First Amendment Center

We support the First Amendment and build understanding of its core freedoms through education, information and entertainment.

The center serves as a forum for the study and exploration of free-expression issues, including freedom of speech, of the press and of religion, and the rights to assemble and to petition the government.

Founded by John Seigenthaler, the First Amendment Center is an operating program of the Freedom Forum and is associated with the Newseum and the Diversity Institute. The center has offices in the John Seigenthaler Center at Vanderbilt University in Nashville, Tenn., and at the Newseum in Washington, D.C.

The center’s website, www.firstamendmentcenter.org, is one of the most authoritative sources of news, information and commentary in the nation on First Amendment issues. It features daily updates on news about First Amendment-related developments, as well as detailed reports about U.S. Supreme Court cases involving the First Amendment, and commentary, analysis and special reports on free expression, press freedom and religious-liberty issues. Support the work of the First Amendment Center.

1 For All

1 for All is a national nonpartisan program designed to build understanding and support for First Amendment freedoms. 1 for All provides teaching materials to the nation’s schools, supports educational events on America’s campuses and reminds the public that the First Amendment serves everyone, regardless of faith, race, gender or political leanings. It is truly one amendment for all. Visit 1 for All at http://1forall.us/

Help tomorrow’s citizens find their voice: Teach the First Amendment

The most basic liberties guaranteed to Americans – embodied in the 45 words of the First Amendment to the U.S. Constitution – assure Americans a government that is responsible to its citizens and responsive to their wishes.

These 45 words are as alive and important today as they were more than 200 years ago. These liberties are neither liberal nor conservative, Democratic nor Republican – they are the basis for our representative democratic form of government.

We know from studies beginning in 1997 by the nonpartisan First Amendment Center, and from studies commissioned by the Knight Foundation and others, that few adult Americans or high school students can name the individual five freedoms that make up the First Amendment.

The lesson plans – drawn from materials prepared by the Newseum and the First Amendment Center – will draw young people into an exploration of how their freedoms began and how they operate in today’s world. Students will discuss just how far individual rights extend, examining rights in the school environment and public places. The lessons may be used in history and government, civics, language arts and journalism, art and debate classes. They may be used in sections or in their entirety. Many of these lesson plans indicate an overall goal, offer suggestions on how to teach the lesson and list additional resources and enrichment activities.

First Amendment Moot Court Competition

This site no longer is being updated … And the competition itself is moving to Washington, D.C., where the Newseum Institute’s First Amendment Center is co-sponsoring the “Seigenthaler-Sutherland Cup National First Amendment Moot Court Competition,” March 18-19, in partnership with the Columbus School of Law, of the Catholic University of America.

During the two-day competition in February, each team will participate in a minimum of four rounds, arguing a hypothetical based on a current First Amendment controversy before panels of accomplished jurists, legal scholars and attorneys.

FIRST AMENDMENT CENTER ARCHIVES

State of the First Amendment survey reports

The State of the First Amendment surveys, commissioned since 1997 by the First Amendment Center and Newseum, are a regular check on how Americans view their first freedoms of speech, press, assembly, religion and petition.

The periodic surveys examine public attitudes toward freedom of speech, press, religion and the rights of assembly and petition; and sample public opinion on contemporary issues involving those freedoms.
See the reports.